Judicial review in the United States

2018-10-16 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Judicial
review in the United States，供大家参考学习，这篇论文讨论了美国的司法审查制度。司法审查制度已成为世界上最具影响力的宪法监督制度之一，是美国法治的基石。在整个美国宪法中，都不能找到联邦法院有权对立法机关、行政部门的行为进行违宪审查的条文。美国司法机关所享有的违宪审查权，它的创设并没有来自宪法体系中的明文规定，而是来自于联邦最高法院的自我授予，通过宪法判例的形式阐明了联邦司法机关可以在宪政实施过程中对立法机关、行政机关的权力运作进行违宪监督，并在之后通过一系列的宪法解释和判例裁判对这样权力进行强化和巩固。

Throughout
the U.S. constitution, there is no provision for a federal court to have the
power to conduct an unconstitutional review of the actions of the legislature
and the executive branch. America's judicial organs shall enjoy the right of
unconstitutional censorship, its establishment is not came from enshrined in
the constitution system, but from the Supreme Court granted - in the form of a
constitutional case illustrates the federal judicial authority can be in the
process of implementation of the constitutional government legislative authority
and administrative authority of constitution supervision power operation, and
then through a series of constitutional interpretation and case the referee to
strengthen and consolidate such power, judicial review system to form.

To
study the origin of American judicial review system, we should explore from
three perspectives: firstly, we should guarantee individual freedom and rights,
which is the goal; Balancing the relationship between the judiciary and the
legislature is the way; It is a concrete means to use ordinary judicial
departments to conduct judicial review of the ACTS of legislative departments.
Therefore, common law tradition and constitutional theory are important aspects
of the study of American judicial review system.

It
is the combination of these two factors that leads to the emergence of judicial
review system. The two are complementary to each other in the study of judicial
review system: the common law tradition provides the impetus and basis for
judicial review on its origin, and it also innovates a new judicial review
mode, i.e. the incidental review conducted by the general court; The
constitutionalism theory provides the system foundation for judicial review,
which demonstrates that the judicial department has the right to examine the
legislative ACTS. It clarifies that the implementation of the constitution by
the judiciary is to resolve the application of conflicting constitutions and
laws, while the resolution of legal conflicts and how to apply the law is the
right given by the common law tradition.

Marshall
gradually established the modern American judicial review system through
"marbury v. Madison" and a series of subsequent cases, so in a sense,
Marshall's "marbury v. Madison" is also the source of judicial
review. Early judicial review was based on the basic principles of common law
and the fundamental principles contained in the basic law. In essence, it is a
political action to guarantee individual freedom by restricting the abuse of
power by the legislature. Therefore, the initial judicial review is to review
some cases that are clearly against the law and will arouse the attention or
opposition of citizens. When conducting judicial review, the judge only reviews
the suspicious circumstances, which shows the trust and respect of the
judiciary for the legislature. Legislation that is contrary to principles or
the spirit of the law is usually invalidated. But in the wake of the Marshall
case, a new model of judicial review came into play. The logic reasoning
process of judicial review is to analyze its hidden legal spirit from the text
of written constitution. At the same time, excluding political disputes, judges
should be neutral and have judicial independence, and not be influenced by
political parties. This new judicial review mode can be understood as: first,
analyze the case first, and see whether political issues or judicial issues,
political issues should be excluded from the scope of judicial review.
Secondly, the case should be examined in accordance with the law, especially to
fully understand the semantics expressed in the constitution and the legal
spirit conveyed behind, and to study whether and how the law is applied.

In
contemporary America, the legislative function status of the judiciary is more
clearly confirmed and accepted, which is also the characteristic of modern
American courts. The modern judicial review system no longer follows the theory
and practice of judicial review in the traditional stage. Cardozo's famous
quote "the highest state of the judicial process is not the discovery of
the law, but the creation of the law" is a particularly accurate summary
of the characteristics of modern judicial review.

At
the turn of the 20th century, judicial responsibility was continuously
strengthened, and judges were required to make laws continuously, based on the
legislative factors in the judicial process. At the same time, the American
constitution, because of the impact of realism, progressivism and revisionism,
has changed from being sacrosanct to an incomplete document, reflecting the
conflict of interests of all parties. In the interpretation of the
constitution, the judge or scholar usually USES the common law to understand
the constitution, that is, the judge has the discretion to interpret the
constitution, that is, the judge can carry out some judicial legislation in the
judicial process. Within the legal profession, the judicial review power of a
judge has been recognized as an important means of conducting legislation, even
if not publicly recognized. Through this transformation, the judicial review
system has developed into a modern judicial review system. This new model of
judicial review grew out of the transition, but it did not dominate the
mainstream. The judge sublimes certain constitutional terms to a certain height
and then USES them to examine and regulate certain matters. In the process,
judges participate in and enact public policy and other laws or bills. The
process is no longer about judges applying the constitution, but creating it.

The
new theoretical foundation of judicial review system is formed in the course of
development from the transition stage to the modern stage. The constitution,
once seen as sacrosanct and admired by almost all americans, is now criticized
in varying degrees by different classes. The constitution is no longer a boring
document on the altar. It goes down the altar to constantly adapt to social
development and balance the interests of all parties. In the new century, with
the continuous development of the society, the deepening of people's
understanding and the new energy of judicial legislative power, these various
factors jointly gave rise to the rise of modern judicial review and gave it new
vitality.

The
judicial review system has both the stage and the continuity, in the long time
development, the American judicial review experienced the qualitative change.
In the process of studying the judicial review system of the United States, we
should have the recognition that the modern judicial review system of the
United States we have seen and studied is only a part of the evolution process
of the system, a stage, we cannot generalize the whole system, and use this
stage to represent the whole system. Similarly, we should not regard the modern
judicial review system as overly admired, which is universally applicable and
widely used for comparison, as "deification" or
"sanctification". The modern American judicial review system is only
a specific stage in the development of judicial review system, which means that
later, it will be surpassed just like the previous three stages.